BVA9504068
DOCKET NO. 93-20 279 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUE
Whether new and material evidence has been presented to reopen a
claim of service connection for otitis media of the left ear.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. F. Halsey, Counsel
INTRODUCTION
The veteran served on active duty from January 12 to March 15,
1946.
Service connection for otitis media of the left ear was granted
by VA in March 1946, effective the day following the veteran's
separation from service. By actions taken in March and June
1952, severance of service connection was proposed and
implemented. The veteran was notified, by a June 23, 1952,
letter, that he had one year in which he could appeal the
severance. However, no appeal was filed. The present appeal
arises from an October 1992 denial by the RO to reopen a claim of
service connection for otitis medial of the left ear.
At a July 1993 hearing held at the RO, a veterans benefits
counselor, acting on behalf of the appellant, raised the issue of
clear and unmistakable error in the June 1952 severance of
service connection. This issue has not been previously
considered by the RO. Consequently, it is referred to the RO for
appropriate action.
The veteran testified at a January 1994 hearing before a member
of the Board of Veterans' Appeals (Board). The Board member who
conducted the hearing is no longer employed by the Board. The
veteran was notified of this in a letter dated in November 1994
and was given an opportunity to request another hearing. In
December 1994, he waived the opportunity to have another hearing.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that otitis media of the left ear began
during military service. He asserts that, despite a finding made
by a service department Board of medical officers that otitis
media pre-existed service and was not aggravated thereby, his ear
difficulties prior to service were limited to his early childhood
years and resolved
without complications. He maintains that it was not until after
he had entered military service that he experienced significant
problems and points to an entry examination showing no ear
problems in support of his position.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that new and material evidence to reopen a claim of service
connection for otitis media of the left ear has been submitted.
FINDINGS OF FACT
1. Service connection for otitis media of the left ear was
severed by a rating action taken in June 1952. The veteran did
not appeal this determination.
2. Evidence has been received since the June 1952 severance that
was not previously available and which is relevant to and
probative of the question of service connection. This new
evidence raises a reasonable possibility of changing the outcome
of the previous determination.
CONCLUSION OF LAW
New and material evidence warranting reopening of a claim of
service connection for otitis media of the left ear has been
received. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105 (West 1991); 38
C.F.R. §§ 3.156, 20.1103 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's application to
reopen his claim is well-grounded within the meaning of § 5107.
In other words, evidence has been submitted that makes his claim
a plausible one--"capable of substantiation."
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). His own testimony
provides an explanation of when he first began to experience
significant problems with his left ear. As he points out, his
service entry examination showed no evidence of an ear problem.
Thereafter, while serving on active duty, otitis media of the
left ear was diagnosed. Although recent medical evidence showing
continued problems with otitis media has not been presented, the
veteran's testimony, a statement by his mother to the effect that
his problems began in service, and medical records prepared
during service all lend support to the veteran's contention that
otitis media began during his period of active military service.
Such evidence makes the veteran's claim plausible. Id. However,
the current claim is not his first attempt at securing a grant of
service connection.
Service connection for otitis media of the left ear was granted
by a March 1946 rating action, but was later severed by a June
1952 rating determination, and the veteran did not appeal the
severance action.
Absent the submission of a timely appeal, a determination by the
RO, such as the June 1952 severance of service connection,
becomes a final action and may not be reopened except on the
presentation of "new and material evidence." 38 U.S.C.A. §§ 5108
(West 1991). In determining whether new and material evidence
has been presented, VA must review the new evidence "in the
context of" the old. See Jones v. Derwinski, 1 Vet.App. 210, 215
(1991). "New" evidence is that which is not "merely cumulative"
of other evidence in the record. Colvin v. Derwinski,
1 Vet.App. 171, 174 (1991). Additionally, evidence is "material"
when it is relevant to and probative of the issue at hand and
there is "a reasonable possibility that the
new evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome." Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991). It should also be pointed
out that, in determining whether evidence is new and material,
"credibility of the evidence must be presumed." Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
In the case at hand, the Board holds that new and material
evidence sufficient to reopen a claim of service connection for
otitis media of the left ear has been submitted. Notably,
evidence received following the June 1952 determination includes
an August 1992 statement from Robert E. Whited, M.D., showing
that the veteran had tympanosclerosis, several areas of atrophy
of the tympanic membrane, and defective hearing. Further, an
August 1992 statement from the veteran's mother indicates that he
began to experience "trouble with his head" when he was on active
duty and that it was during this time that his ear drum was
perforated. Testimony provided by the veteran in July 1993 and
in January 1994 includes detailed information as to the extent of
problems he experienced with his ears before, during, and after
service.
The veteran testified that pre-service difficulties with his ears
were limited to earaches during his early childhood years. He
said that those difficulties cleared up and that he did not
remember having any problems with his ears during his teenage
years until after he entered active military duty. His mother's
statement corroborates this account. Although the veteran
apparently made a similar statement during a VA examination in
March 1947, when he said that his ears never really bothered him
until he entered service, sworn information of the details
provided in July 1993 and January 1994 had not previously been
available, nor had a statement from a family member been
available prior to the application to reopen the claim. This
additional information, providing greater detail as to the extent
of difficulties experienced before service, tends to refute
statements included in the veteran's service records that he had
had almost constant ear difficulties prior to
service. Consequently, the newly received evidence is both new
and material. It is probative of the question at hand and raises
a reasonable possibility that the earlier outcome would change.
The veteran's claim of service connection should therefore be
reopened.
ORDER
A claim of entitlement to service connection for otitis media of
the left ear is reopened and, to this extent, the appeal is
granted.
REMAND
In light of the Board's conclusion that a claim of service
connection is reopened, consideration must be given to whether
additional development is required in order to ensure that the
veteran's procedural rights are protected so far as his being
given adequate notice and opportunity to present evidence on the
underlying question of service connection. Bernard v. Brown, 4
Vet.App. 384 (1993). As already noted, the October 1992 RO
determination appealed by the veteran was whether evidence had
been received sufficient to reopen the claim. Now that this
question has been settled, the Board finds that he should be given
an opportunity to submit evidence, including testimony and
argument on the substantive question of entitlement to service
connection. In order to give the veteran adequate notice of the
need to submit such evidence or argument, and to allow the RO the
opportunity to adjudicate the merits of the claim of service
connection on a de novo basis, a remand is required. Id. In this
regard, the Board notes that an examination would be helpful to
determine whether the veteran continues to experience problems
with otitis media of the left ear, as was shown during service and
shortly thereafter. Consequently, the case is REMANDED for the
following actions:
1. The veteran should be given an
opportunity to submit recently prepared
records showing treatment or evaluation of
otitis media of the left ear.
2. An examination of the veteran's ear
should be conducted. The examiner should
review the evidence contained in the claims
folder, including that obtained pursuant to
the instruction above. The examiner should
state whether the veteran has otitis media
of the left ear, and if so, whether it is
at least as likely as not that otitis media
of the left ear began during service or, if
present before service, whether it
underwent a worsening during service. All
findings, opinions and bases therefor
should be set forth in detail.
3. After completion of the development
sought above, the RO should take
adjudicatory action on the substantive
question of service connection. The claim
should be evaluated on a de novo basis,
giving consideration to all the evidence of
record. Any additional development deemed
necessary should be undertaken. If the
benefit sought is not granted, a
supplemental statement of the case should
be issued.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the case,
the claims folder should be returned to this Board for further
appellate review. No action is required by the veteran until he
receives further notice. The purposes of this remand are to
procure clarifying data and to comply with governing adjudicative
procedures. The Board intimates no opinion, either legal or
factual, as to the ultimate disposition of this appeal.
M. CHEEK
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).